Dealing with losing jury trials

When trial lawyers who are passionate about their client’s cause lose the case, their pain for the loss of their client is palpable. Dealing with losing is always agony and something we never get used to if we are competitive trial lawyers striving for our client’s rights. I’ve often said: losing hurts worse then winning feels good. My personal rule is that I rejoice for my victories only twenty four hours and limit remorse for losing to forty eight hours. After that, I move on. It’s over. But, the truth is I can recall the details and the pain of every one of the cases I’ve lost. On the other hand, I often have difficulty trying to remember the facts of the cases I’ve won. It is true that great trial lawyers don’t lose very often. My friend Gerry Spence has never in his career lost a criminal case and for over thirty years, has not had a defense verdict in a civil case either. But, the rest of us have to deal with the fear and the reality of losing cases. As the lawyer in the movie Civil Action says:

"The odds of a plaintiff’s lawyer winning in a civil court are two to one against. Think about that for a second. Your odds of surviving a game of Russian roulette are better then winning a case at trial. Twelve times better. So why does anyone do it?. They don’t. They settle."

While it is not true that lawyers settle their cases instead of going to trial, the fact remains that losing is part of the life of a trial lawyer. So here’s a collection of thoughts about dealing with losing.

Roy Acuff was right when he said "any game you play, you got to lose sometime." No body likes losing. Tennis great Martina Navratilova once said "Whoever said ‘It’s not whether you win or lose that counts’ probably lost. The risk of losing is simply part of the act of being a trial lawyer. Vince Lombardi, the great football coach, has said it this way:

"The price of success is hard work, dedication to the job at hand, and the determination that whether we win or lose, we have applied the best of ourselves to the task at hand."

We suffer our defeats totally alone as trial lawyers. Galeazzo Ciano correctly has observed "Victory has a hundred fathers, but defeat is an orphan." There is no one who can really console you when you lose & it is something we need to grieve about all alone.The impact of losing is best expressed by the poem Casey at the bat by Ernest Lawrence Thayer which has these lines:

"Oh, somewhere in this favored land the sun is shining bright. The band is playing somewhere and somewhere hearts are light; And somewhere men are laughing and somewhere children shout. But there’s no joy in Mudville – Mighty Case has struck out."

It hurts so much to lose when you have given it your best. It is a sword through the heart. Our pride is hurt. As Aaron Nimzovich has said: "How can I lose to such an idiot?" That is our normal reaction. Nobody wants to lose either. As Reggie Jackson, the baseball great, has noted "I don’t mind getting beaten, but I hate to lose." It’s always painful. Morris Udall once said "I’ve been a winner and I’ve been a loser, and believe me, winning is best." From the world of sports we have the wisdom of great athletes who have suffered the pain of losing and have learned not to allow it to demoralize them." The late great tennis pro Arthur Ashe has said:

"Every time you win, it diminishes the fear for a little bit. You never really cancel the fear of losing; you keep challenging it." and

"You’ve got to get to the stage in life where going for it is more important winning or losing."

It is losing heart after a defeat we must resist. Robert Ingersoll has correctly observed "The greatest test of courage on earth is to bear defeat without losing heart." It is the emotional impact that is our challenge. George Allen has said "Every time you win, you’re reborn. Every time you lose, you die a little"

The courage to get up and carry on after a defeat is best expressed by these lines from the poem Invictus by William Ernest Henley:

"Out of the night that covers me, black as the Pit from pole to pole, I thank whatever gods may be for my unconquerable soul. In the fell clutch of circumstance I have not winced nor cried aloud. Under the bludgeoning of chance my head is bloody, but unbowed."

Then there is the courage expressed in John Dryden’s poem Johnnie Armstrong Last Goodnight which puts it so well:

"Fight on, my merry men all, I’m a little wounded, but I am not slain. I will lay me down for to bleed awhile , then I’ll rise and fight with you again."

The ability to learn how to deal with losing is essential if one is to be a great trial lawyer. As the tennis great Chris Evert Lloyd once noted "If you can react the same way to winning and losing, that’s a big accomplishment…"

We need to have the courage to pick ourselves up and be willing to again face the fear of losing. John Wayne has said "courage is being scared to death, but saddling up anyway."

Theodore Roosevelt was a man of courage. He knew that in spite of the pain of defeat, it’s better to try then not try. He put it this way: "It’s hard to fail, but it’s worse never to have tried to succeed." His most famous quote about this is from a speech he gave with these thoughts:

"Far better it is to dare mighty things, to win glorious triumphs even though checkered by failure, than to rank with those poor spirits who neither enjoy nor suffer much because they live in the gray twilight that knows neither victory nor defeat. Or, as Alfred Tennyson said it in poetry "Tis better to have loved and lost than never to have loved at all."

In the end, we learn from defeat the truth of the proverb "The hottest fire makes the strongest sword." Besides, as Euripides has said "Waste not fresh tears over old griefs." The late motivational writer Og Mandino advised us to try to learn from the experience:

"Whenever you make a mistake or get knocked down by life, don’t look back at it too long. Mistakes are life’s way of teaching you. Your capacity for occasional blunders is inseparable from your capacity to reach your goals"

In the end, the greatest lesson we need to learn is to put the loss in perspective. In the great scheme of things what is the real significance? Astronomer Carl Sagan painted the correct picture for us to use in evaluating our defeats when he wrote:

"Who are we? We find that we live on an insignificant planet of a humdrum star lost in a galaxy tucked away in some forgotten corner of a universe in which there are far more galaxies than people."

So there you have it. When you suffer the loss of a case, you stop, step back, put the loss in perspective and try to learn from the experience. Then you pick yourself up, dust yourself off and go back to work on the next case.